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Tuesday, March 29, 2011

Will the Corporate Court Deliver for Wal-Mart?

The Supreme Court heard oral arguments today in Wal-Mart v. Dukes, a gender discrimination class action against the retail giant. AFJ’s Justice Watch blog has highlighted specific aspects of the case in daily installments. Today’s final installment summarizes what's at stake in the case and places it in the context of the Roberts Court’s strong pro-corporate bias.

The ability of the world’s largest retailer, and largest private employer in the United States, to discriminate on a massive scale against its female employees is at stake in the biggest case of the U.S. Supreme Court’s 2010-11 term – Wal-Mart v. Dukes. In Dukes, the district court approved, and the en banc Ninth Circuit Court of Appeals upheld, certification of a class action brought by Betty Dukes and others to hold Wal-Mart accountable for suppressing women’s pay and promotion for more than a decade. Despite detailed findings by the lower court and the lack of a circuit split on the issues in dispute, the Roberts Court accepted Wal-Mart’s appeal.

Powerful corporations like Wal-Mart have consistently enjoyed a home field advantage when litigating in front of the Roberts Court. Since 1953, corporate interests have won just 42 percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice Roberts’ first five years. Just last term, the Roberts Court ruled in favor of the side that the U.S. Chamber of Commerce supported in 13 of 16 cases. The U.S. Chamber, and a wide array of other large corporate interests, have lined up on Wal-Mart’s side in this case.

Why is Wal-Mart v. Dukes so important? When Congress passed Title VII as part of the Civil Rights Act of 1964 to prohibit discrimination in employment, women working full time were paid approximately 59 percent of what men were paid, on average. Today, nearly 37 years later, women are paid only 77 percent of what men are paid. Over an average lifetime of work, this difference will result in a loss of $700,000 for a female high school graduate, $1.2 million for a college graduate and $2 million for a professional school graduate. Working women and their children also experience higher rates of poverty than men, and have a greater need for public assistance to obtain health care, including those working at Wal-Mart.

If our nation’s largest employer – with approximately 1.4 million employees, more than 860,000 of whom are women, a large percentage of whom are women of color – can avoid liability for systemic discrimination across its nationwide chain of stores, it will undermine the equal rights of all women workers. Moreover, any ruling by the Roberts Court that makes it harder for employees to bring a class action will remove an important safeguard that protects workers when they suffer discrimination.

In today’s political climate, corporations are eager to roll back the clock and destroy many of the gains workers made during the Civil Rights era. Wal-Mart v. Dukes could dramatically boost or inhibit those efforts, depending on how the Court rules.

Click here to read more about this landmark case and download AFJ's comprehensive analysis.